It's a pretty big deal. But the discussion on these procedural changes has been done. My posts here and here have some of the details.

But the changing of some of the processes, has meant substantive changes were needed to our criminal laws. In particular, the removal of the distinction between indictable offences (otherwise known as crimes), and summary offences (otherwise known as summary offences) will result in the expansion of the scope of a number of crimes.

The definitions of a number of crimes include the word "crime" within them, and when we abolish "crimes" in the technical sense, something needs to replace it. The important point to note is that things that currently constitute "crimes" are essentially a subset of imprisonable offences. Not all things that count as "crimes" are really serious, but there is a certain threshold that has to be reached. The group of imprisonable offences is considerably larger than the group of crimes.

The best example of the change - and the one most likely to make a big difference, is the offence of burglary.

Historically, burglary was the combination of two offences: breaking and entering, and theft. Breaking into someone's house is a crime. Stealing from someone is a crime. Add the two together and it gets much more serious.

There have been changes over the years to burglary. The requirement of "breaking" went at some point, so that it could still be a burglary if you went through an unlocked door. The definition of what counted as entry also changed. Any part of you, or of anything you were holding could be enough. There also used to be a greater focus on buildings, and I don't think it always covered tents, and 'enclosed yards', which it now does.

One of my tutors on the Legal Professionals course gave an example of the effect of the then quite-recent law change. I probably have the details wrong, but his client had smashed a shop window with some sort of crowbar, only to realise that there was a security grill behind the glass. She never entered the premises, but the tip of crowbar did as it went through the window, and as she was touching the crowbar at the time, that was enough. Upon finding herself charged with burglary, she said something to the effect "that's not a burglary, I've done burglaries!" But it is, now.

These changes were behind the burglary charges initially faced by Lucy Lawless and her fellow Greenpeace protesters over her oil-drilling protest, and also the burglary charge faced by Adrian Leason, Peter Murnane and Sam Land over the Waihopai spy dome deflation. There was some media comment that the burglary charges in those cases were "overcharging", but the charges just reflected changes to the legal elements of burglary, that perhaps haven't been subsumed into its ordinarily-understood definition.

Big changes, yes, but they were announced in advance, and debated in Parliament in the ordinary way. The change to burglary (as well as some other offences) as a result of the Criminal Procedure Act, hasn't really faced the same sort of scrutiny.

At present, after the changes I list above, burglary can essentially be described as an illegal entry, with the intention of committing a crime.

Notice the use of the word crime. We're abolishing crimes, and we're abolishing the indictable jurisdiction that essentially defines which offences count as crimes, and which do not. An illegal entry undertaken for the purpose of committing an offence that does not meet the definition of "crime" is not a burglary.

But the use of the word crime as part of one of the elements of an offence like burglary, means we have to come up with another concept to take the place of the "intention to commit crime" component of the offence. In respect of burglary, the intention requirement will change from “with intent to commit a crime” to “with intent to commit an imprisonable offence”. Because the range of offences covered by “imprisonable offence” is much wider than the range of offences covered by “crime”, this means that the scope of burglary has expanded substantially. And things that previously did not count as a burglary, soon will.

Two examples should suffice: when the law change takes effect, an unauthorised entry into an enclosed yard for the purposes of committing minor vandalism (currently three months’ imprisonment for the entry, and three months’ imprisonment for the wilful damage), will become a burglary, with a maximum of 10 years’ imprisonment.

It might also be easy to imagine someone selling marijuana on a street doing so from behind the fence of enclosed yard, so they can't easily be seen. Putting your hand through the fence to secure possession of your class C drug (maximum penalty three months' imprisonment), will soon, also constitute a burglary.

The behaviour I've described probably won't result in burglary charges all that often, but as the charges in the Waihopai and Greenpeace protests show, assumptions about police charging practice as a result of law changes may not always be met.

The law change itself isn't really the concern (although, let's be honest, it is). My concern is the way in which the change was made, without anyone realising that was what was happening. I suspect few of the members of Parliament who spoke on the bill, and voted for it, understood the consequences of the change they were making, and I don't believe anyone who made a submission on the bill did either (I read them all) .

I wrote a fairly big part of a submission on the Criminal Procedure Bill. And like everyone else, focused on the big-ticket stuff. I picked up a few procedural issues, and got a few things changed no-one else had noticed.

Last week, I presented an argument in the Supreme Court which focused on a provision in the Act's suppression powers (which are the bit of the law already in force) which closely mirrors language I wrote for the submission. I'm quite pleased that non-accredited media can have a right to be heard on suppression orders (especially given the Law Commission recommended they shouldn't) and it was quite surreal to be arguing about what it meant given I'd spotted the issue, and suggested the change adopted.

But I missed this.

And I'm sorry about that. This isn't to say the change is necessarily bad, but there should have been a debate. Even if just on this website. I wasn't alone in missing it, but this is the type of unintended consequence I try to pick up when I'm writing a submission on a bill, and I dropped the ball.

When the Criminal Procedure Act was passed, references to crime and indictment from across the statute book were amended, and changes were made to a whole bunch of offences like burglary. But a few were missed, and along with a few minor changes, Parliament is now considering a "non-controversial" bill to fix things up for later in the year when the new regime takes effect.

The Criminal Procedure Legislation Bill includes changes to six offence provisions which include an intention to commit a crime as one of their elements. It proposed to change three of these offence provisions in line with the changes to burglary: changing the requirement from an intention to commit a crime, to an intention to commit an imprisonable offence. The effect won't be as wide-ranging as the burglary change, but the scope of each offence is nonetheless expanded. The change to the other three is much more concerning, with the intention element changing from an intention to commit a crime, to an intention to commit an offence. That offence doesn't have to be imprisonable.

One of those three offences is the offence contained in section 251(2) of the Crimes Act, which makes it an offence punishable by two years imprisonment to possess "any software or other information that would enable [you] to access a computer system without authorisation" if you intend "to use that software or other information to commit a crime". I'm pretty sure Microsoft Windows has that capability, so it seems rather ludicrous to make possession of it a serious crime in such circumstances. Increasing the punishment of a minor, fine-only offence to two-years imprisonment because of the involvement of a computer program is legislative overkill.

Yet more concerning is that the bill not only proposes making this sort of change, but that it would also empower the government to make future changes of this nature by regulation. If it happens that there are a few more of these offences with "intention to commit a crime" contained in them, the government wouldn't even need Parliamentary approval to choose between extending them to imprisonable offences, or all offences.

Parliament should be very wary about ever giving the government the power to amend primary legislation, but that power should never include the power to expand the scope of criminal offences. And it certainly shouldn't be doing it in a non-controversial law reform bill.

27 responses to this post

On the computer crime thing - sure, there are many programmes that are capable of being used to commit a crime. There must be a co-existent intention to commit a crime which may be proven by direct evidence or inference. But then lots of stuff can be used for nasty purposes. The crowbar that I am using for my house renovations could be used for a burglary, and the hammer which I use for a legitimate purpose can be used for an offence of violence.

More detail of the Supreme Court case please - talk about throwing out a teaser!

there are many programmes that are capable of being used to commit a crime. There must be a co-existent intention to commit a crime which may be proven by direct evidence or inference.

That's true. But the type of crime that has to be proved by that evidence would change markedly. The example I gave the select committee was having an intention to send out election advertisements without promoter statements on them. That fine-only Electoral Act offence does not meet the definition of crime, so the overall "offending" isn't a breach of the computer crime offence provision in the crimes act, if the "intention to commit a crime" bit becomes "intention to commit an offence" it will be enough.

As I note, the effects of these changes will be far less important than the change to burglary, but I do think the principle objection is sound. Law reform bills of this nature shouldn't be used to drastically expand the scope of offences, even if those offences are hardly ever charged (has anyone been charged with the computer program possession offence?)

More detail of the Supreme Court case please – talk about throwing out a teaser!

Siemer v Solicitor-General. I was appearing for Mr Siemer as junior, but got around half-an-hour on my feet when it was argued for the second time last week.

We had a day’s hearing late last year on the question “[do] New Zealand courts have inherent power or jurisdiction to suppress judgments in criminal cases?”

A week or so after that hearing, we received a minute from the court saying, we’d like to hear argument on two further grounds:

“[can] a person who wishes to act in a manner contrary to a suppression order may seek to have it rescinded or varied?”

and

“[can], in contempt proceedings based on breach of an order of Court, the defendant may raise as a defence that the order should not have been made or made in the terms it was?”

Counsel for the Solicitor-General raised the suppression rules in the Criminal Procedure Act (and the right of accredited media to be heard on (statutory) suppression orders, and others, by leave) suggesting that they resolved the matter, and then there was a debate about whether in fact, others needed leave to be heard.

We may find out what the court thinks (although it will be somewhat tangential), but I’m confident that what I meant when I suggested it was that anyone else covering the trial with permission of the judge would have a right to be heard. (that is, if the Court permits a blogger to cover the trial, that blogger then gets the rights of accredited media to be heard on, and appeal suppression orders etc.). It’s important for a few other reasons: non-accredited media includes bloggers, etc, but for a long time, it would have included the NBR, and it still includes many foreign media (I used the example of Ms McQuillan, the New Zealander covering the Guy murder trial for the Australia Associated Press, who became famous for her “Disco Pants”; counsel for the S-G used David Farrar, and was prompted by a judge (or two?) that he wrote Kiwiblog)

My concern is that BORA got changed so quietly. Isn't it meant to be core, fundamental, rights, not something that can be tweaked at will? I know it's neither entrenched or binding, but if it's amendable late on a Friday while everyone's at the beach, why not replace the whole thing with a Poolean version:

The subjects of New Zealand exist at the pleasure of their rulers. They have no rights, but may exercise such privileges as the rulers see fit to grant.

It wasn’t that quiet. Indeed, it altered during the passage of the bill due to public disquiet.

The current rule is that a defendant can ask for a jury if the maximum penalty is more than three months’ imprisonment.

As introduced, this would have changed to “more than three years”, which in reality would have meant at least 5 years (our hierarchy of maximum prison sentences is basically: 3 months, 6 months, 1 year, 2 years, 3 years, 5 years, 7 years, 10 years, 14 years, 20 years, life).

I think, from memory, that Keith Ng demonstrated the power of Word at the MSD. I would add that everyone reading this has a tool on their computer (a web browser) that can provide unauthorized access to a website if that websites security is effectively non-existent.I am thinking of those cases in other jurisdictions where people have noticed the web address contains something like ID=1001, wondered "what happens if I change the number to 1002, seen confidential information of other people, reported it as a problem with the website security, and wound up being charged with hacking/unauthorized access to a computer system.Slightly off topic, but under such circumstances I think the model of "entry" is a very poor one (the metaphor that I am entering the server and looking around). I am making a request of the webserver, the webserver should be verifying who it is making the request to if the information is intended to be confidential. The fault to me lies with the people who set a system that provides intended confidential information to random public requests.

That raises an interesting question. If someone commits the offence of being unlawfully on premises, and they have the intention of being unlawfully on premises, are they (soon to be) committing a burglary?

Parliament should be very wary about ever giving the government the power to amend primary legislation, but that power should never include the power to expand the scope of criminal offences. And it certainly shouldn’t be doing it in a non-controversial law reform bill.

Yes. And the current Parliament/Government has done this on one occasion with the dob-in-a-child-abuser legislation, and now propose adding to that with partners of spouses who commit welfare fraud being culpable. Both of these are "new" criminal offences, according to the Ministers. I don't like it at all.

I would add that everyone reading this has a tool on their computer (a web browser) that can provide unauthorized access to a website

But probably most of us don't possess those tools because we intend to commit an offence with it. I would hope that any possession charge would require some proof that committing a crime is the primary reason for possessing the item.

What's the deal with people knocking on your front door to raise money for charity, flog some home ventilation system, or borrow some sugar? They've all clearly entered your property without permission.

I'm not quite getting the burglary vs trespass difference.

Could somebody freedom camping on the edge of somebody's farm out in the sticks be charged with burglary? because they would know that they weren't allowed to do that per se, but would just be relying on the fact that they probably aren't really causing any harm. Me and some mates did that all round Europe ten years ago. Some of it on public land, but some on private land (but discreetly) and the owners paid us no mind).

Me and my father turned up home a few years ago and found an elderly man had parked his car on our property and was sitting in his deck chair, eating his sandwich and admiring the view of the dry stone wall dad had built and the valley beyond.

He asked us if he was OK there and dad said, no worries, and went to the house and left him too it. My dad told me that when he was younger that that was quite common that people would be out in the countryside and would have a picnic, or take in the scenery on privately owned land.

But that could now be classed as burglary? Not that there would be any charges in that situation I mentioned but the idea that it could be if the land owner was a prick... ???

What if there is a gate at the end of the drive? Should domestic properties close their gate and hang a sign saying "closed for soliciting, trespassers will be prosecuted for burglary". Quite tempting :)

To get to our front door somebody has to walk up our drive, go up stairs, and cross our deck to our front door. There is a gate at the top of the stairs on to the deck, which is sometimes closed and sometimes not.

It seems absurd that all that should make a difference.

It's pretty bloody obvious when somebody walks on to private property and you shouldn't need to put a gate in to define the property. We've all probably walked past 10,000 houses in our lives and known exactly where the boundary is. The fact that a door isn't closed isn't an indication that the occupants allow you to enter.

I'm going to hang a sign at the end of our drive saying "All those setting foot past this point will be charged with burglary".

joking of course.

But as an aside would a sign telling people it's private property and to bugger off constitute a 'gate/fence' ?

Your front lawn isn't an enclosed yard, so no.Enclosed yards are usually places like building sites, or semi-industrial places that get locked at the end of the day, if you can just stroll up a driveway, I don't believe it counts.

I've got another curly one for you Graeme.

About 2 months ago I caught the neighbours kids throwing fruit from a tree on their property at my house and a neighbours house.

Does a thrown object that crosses your property boundary, causing damage, equal a held crowbar that crosses a boundary smashing a window (for example)? In other words were they burgling my house?

They threw it through trees and over a 5 foot fence so yes, it is an enclosed yard. They were lobbing them and showering on my neighbours roof as well.

I wandered around to their property, and had to open a gate to gain access, and knocked on their front door where I had a chat with his grand mother. I couldn't find anything to steal, but I was wearing my op shop wolf's head so I ate her, hid in her wardrobe, and tried to get her grand son. His dad came at me with an ax, but I managed to slip over our fence and hid in our rabbit hutch until he left.

Overseas, hackers are already threatened with longer sentences than rapists and armed robbers. I sometimes wonder if it's because rape and robbery barely affect the Inner Party/One Percenters, where hacking is one of the few things that genuinely make them brown their pants.